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Kuppusamy (Migration) [2020] AATA 49 (7 January 2020)

Last Updated: 22 January 2020

Kuppusamy (Migration) [2020] AATA 49 (7 January 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Palanyvela Kuppusamy

CASE NUMBER: 1809283

HOME AFFAIRS REFERENCE(S): BCC2016/2590533

MEMBER: Mark Bishop

DATE: 7 January 2020

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 07 January 2020 at 10:02am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – employer’s position nomination refused – refusal affirmed on review – no approved nomination – adjournment of applicant’s review hearing sought – employer’s appeal to Federal Circuit Court – no particulars or documentation provided – medical grounds – sufficiency of letter from dental practice manager – tribunal’s practice direction – no appearance by applicant at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65, 359A, 360, 362B, 379A(4)
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 186.233(3)

CASE
MIAC v Li [2014] FCAFC 1; (2013) 249 CLR 332

Thapaliya v MIAC [2013] FCCA 456

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 5 August 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).
5. The delegate refused to grant the visa because the applicant did not meet cl.186.231of Schedule 2 to the Regulations because the applicant did not meet the requirements of the class of persons exempt from the Direct Entry age criteria stipulated in cl.186.231(b) and stipulated in the instrument IMMI 15/083.
6. The applicant provided a copy of the decision record to the Tribunal.
7. The applicant did not appear before the Tribunal on 7 January 2020 to give evidence and present arguments. See hereunder.
8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
11. In addition, this criterion also requires that:
    • the person who will employ the applicant is the person who made the nomination
    • the nomination has been approved and has not been subsequently withdrawn
    • there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
    • the position is still available to the applicant, and
    • the visa application was made no more than six months after the nomination of the position was approved.
12. The nominator in Case number 1809282 was Rich Mahal Restaurant Pty Ltd. The nomination was lodged in favour of Mr Palanyvela KUPPUSAMY as nominee. In this review application the applicant is Mr Palanyvela KUPPUSAMY. The nominee is employed as a part time cook and maintains residence in Australia as the holder of a Bridging visa.
13. On 20 November 2019 in case number 1809282, an application by Rich Mahal Restaurant Pty Ltd as nominator, the Tribunal determined the nominator did not meet the requirements of r.5.19(4)(a) and (h) and affirmed the decision under review to refused the nomination.
14. Accordingly on 27 November 2019 the Tribunal wrote to the applicant under s.359A of the Act and provided adverse information. The Tribunal in writing outlined the following particulars to the applicant
    • On 20 November 2019 in an application for review by Rich Mahal Restaurant Pty Ltd the Tribunal affirmed the decision to refuse the nomination.
    • This information is relevant to the review because under cl 186.233(3) of Schedule 2 to the Migration Regulations it is a requirement for the grant of a visa that the ‘Minister has approved the nomination’.
    • If the Tribunal were to rely on this information in making its decision, it may lead it to believe that you do not meet cl 186.233(3). If the Tribunal so finds, this information would be a reason, or part of a reason for it to affirm the decision of the Department of Home Affairs in your case and refuse your application for a Subclass 186 visa.
    • You are invited to give comments on or respond to the above information in writing.
    • Your comments or response should be received by 11 December 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
15. On 5 December 2019 the applicant wrote to the Tribunal in the following terms:
    • This is with reference to your email dated on 27th November 2019.
    • I wish to inform you that, the company has already appealed in the federal circuit courts regarding the Tribunal affirming the decision to refuse the nomination in an application for review by Rich Mahal Restaurant Pty Ltd.
    • Hence, I request you not to refuse the application until the federal court application is finalised in the interest of justice.
    • This is for your kind information.
16. On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and refugee Matters provides as follows:

7. Seeking an adjournment

7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

7.4 ...

17. The Tribunal considers the information outlined in dot point 3 in paragraph 15 above to be a request for an adjournment as outlined in the relevant Practice Direction.
18. The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li [2014] FCAFC 1; (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’. Subsequent cases have distinguished themselves from Li. For example, in Thapaliya v MIAC the Court held that there was no evidence to suggest that a satisfactory IELTS test score was “just around the corner”.
19. The Tribunal considers the facts and circumstances of this review application.
    1. The applicant has stated that the nominating company has applied for review of the Tribunal’s decision to affirm the refusal of its nomination application. The applicant has asked that the Tribunal delay its decision until after the finalisation of this court matter.
    2. The applicant has not provided any particulars as to when this application was filed, when a directions hearing is scheduled or provided an argument for the prima facie merits of its application. As a result it is not clear how long the proposed adjournment would require, and whether or not the applicant would be successful in his application for judicial review.
    3. The applicant has not provided copies of any relevant documentation relating to the filing of such application in the Federal Circuit Court of Australia (FCCA).
    4. Excluding the assertion of the applicant as outlined above there is no evidence before the Tribunal that the nominator in Case number 1809282 has lodged an appeal application with the FCCA.
    5. In these circumstances no evidence has been presented to the Tribunal that the event for which the applicant seeks to adjourn the hearing is ‘just around the corner’ as discussed in Thapaliya. Indeed, as the decision to affirm the refusal of the nomination was only made on 20 November 2019 any application for judicial review is likely to be far from determination for a significant period of time and as discussed above, there is no evidence as to whether this application might be successful.
20. Considering the purpose of the Tribunal to conduct a review in a manner which is fair, just, economical, informal and quick, as discussed in Li, the Tribunal is of the view it is reasonable to refuse the adjournment after giving active consideration to the reasons advanced by the applicant and the circumstances of the case.
21. On 11 December 2019 the Tribunal in writing invited the applicant to attend a hearing scheduled for 7 January 2020. The Tribunal advised the applicant in writing as follows:
    • If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
    • If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
22. Late on the afternoon of the day prior to the scheduled hearing the applicant made a further request for a postponement of the scheduled hearing. He advised he had not been well and would not attend the scheduled hearing. He attached a letter from Heatherton Dental. The letter was signed by a Niroj Douglas “Practice Manager” and dated 6 January 2020. It advised as follows:
    • Mr Kuppusamy Palanyvela attended our dental clinic for treatment and will not be able to attend work from 06/01/2020.
23. As outlined above the Tribunal considered Practice Direction number 7. The Tribunal now attaches the full clause as relevant. It provides as follows:

Seeking an adjournment

7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.
7.4 If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).

24. The Tribunal follows the same process as outlined in paragraph 18 above.
25. The Tribunal notes the letter provided by the applicant is not signed by a medical practitioner as mandated in cl 7.4. It does not state the applicant is unable to attend a hearing. It does not state when the applicant will be able to attend a hearing. The Tribunal is not aware of the medical qualifications, if any of the “Practice Manager” who signed the letter. The Tribunal is not aware if the “Practice Manager” signed the letter at the direction of a medical practitioner or if the content of the letter was dictated or sighted by a medical practitioner prior to the applicant providing it to the Tribunal. In the context of cl 7.4 as outlined above it has little utility.
26. Notwithstanding these shortcomings the Tribunal turns to consider the request for an adjournment.
27. The letter provided by the applicant does not outline any detail relating to the alleged condition suffered by the applicant. It does not advise he suffers from any incapacity. It does not provide any detail as to the reason he attended the dental clinic. It does not outline any detail relating to the reasons the applicant was seeking treatment at Heatherton Dental. It does not advise he cannot or should not travel. It does not advise he cannot or should not provide oral evidence. The letter from Heatherton Dental does not provide any reason for not attending the scheduled hearing. The Tribunal Is not satisfied the applicant has provided sufficient reasons that warrant the granting of an adjournment in this review application.
28. The Tribunal advised the applicant the request for an adjournment was refused and the hearing would proceed as scheduled.
29. The applicant did not attend the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
30. On 27 November 2019 the Tribunal in writing provided adverse information to the applicant. The relevant facts are outlined in paragraphs 12 to 15 above. As outlined above the Tribunal in writing requested the applicant provide evidence that he was the subject of a nomination approved by the Minister under r.5.19 as required by cl. 186.233(3) of Schedule 2 to the Migration Regulations.
31. The applicant did not provide such evidence. There is no such evidence before the Tribunal.
32. The Tribunal did not approve the nomination in respect of the nominator under r.5.19 of the Regulations made by the employer Rich Mahal Restaurant Pty Ltd in Case number1809282. Hence the applicant in this review application does not meet cl.186.233 (3) of Schedule 2 to the Regulations.
33. Therefore, cl.186.233 is not met.
34. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

DECISION

35. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Mark Bishop
Member

ATTACHMENT A

186.233 (1) The position to which the application relates is the position:

(a) nominated in an application for approval that seeks to meet the requirements of:

(i) subparagraph 5.19(4)(h)(i); or

(ii) subregulation 5.19(2) as in force before 1 July 2012; and

(b) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2) The person who will employ the applicant is the person who made the nomination.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(4A) Either:

(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(5) The position is still available to the applicant.

(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.